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The politics of torture

This should be required reading for all you torture apologists.

Testimony of David Luban
Senate Judiciary Committee,
Subcommittee on Administrative Oversight and the Courts
Hearing: “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration”
May 13, 2009

Chairman Whitehouse and members of the subcommittee.

Thank you for inviting me to testify today. You’ve asked me to talk about the legal ethics of the torture and interrogation memos written by lawyers in the Office of Legal Counsel. Based on the publicly-available sources I’ve studied, I believe that the memos are an ethical train wreck.

When a lawyer advises a client about what the law requires, there is one basic ethical obligation: to tell it straight, without slanting or skewing. That can be a hard thing to do, if the legal answer isn’t the one the client wants. Very few lawyers ever enjoy saying “no” to a client who was hoping for “yes”. But the profession’s ethical standard is clear: a legal adviser must use independent judgment and give candid, unvarnished advice. In the words of the American Bar Association, “a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” [1]

That is the governing standard for all lawyers, in public practice or private. But it’s doubly important for lawyers in the Office of Legal Counsel. The mission of OLC is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC’s job is not to rubber-stamp administration policies, and it is not to provide legal cover for illegal actions.

No lawyer’s advice should do that. The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct; [2] they require competence;[3] and they demand that lawyers explain enough that the client can make an informed decision, which surely means explaining the law as it is. [4] These are standards that the entire legal profession recognizes.

Unfortunately, the torture memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and in places deeply eccentric reading of the law. The memos cherry-pick sources of law that back their conclusions, and leave out sources of law that do not. They read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques.

My written statement goes through the memos in detail, Mr. Chairman. Let me give just one example here of what I am talking about. Twenty-six years ago, President Reagan’s Justice Department prosecuted law enforcement officers for waterboarding prisoners to make them confess. The case is called United States v. Lee. [5] Four men were convicted and drew hefty sentences that the Court of Appeals upheld. [6]

The Court of Appeals repeatedly referred to the technique as “torture.” This is perhaps the single most relevant case in American law to the legality of waterboarding. [7] Any lawyer can find the Lee case in a few seconds on a computer just by typing the words “water torture” into a database. But the authors of the torture memos never mentioned it. They had no trouble finding cases where courts didn’t call harsh interrogation techniques “torture.”[8] It’s hard to avoid the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury chose not to mention the Lee case because it casts doubt on their conclusion that waterboarding is legal.[9]

Without getting further into technicalities that, quite frankly, only a lawyer could love, I’d like to briefly mention other ways that the torture memos twisted and distorted the law. The first Bybee memo advances a startlingly broad theory of executive power, according to which the President as commander-in-chief can override criminal laws. This was a theory that Jack Goldsmith, who headed the OLC after Judge Bybee’s departure, described as an “extreme conclusion” that “has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”[10] It comes very close to President Nixon’s notorious statement that “when the President does it, that means it is not illegal”—except that Mr. Nixon was speaking off the cuff in a high pressure interview, not a written opinion by the Office of Legal Counsel.

The first Bybee memo also wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists “severe pain” as a symptom that might indicate a medical emergency. Mr. Yoo flips the statute and announces that only pain equivalent in intensity to “organ failure, impairment of bodily function, or even death” can be “severe.” This definition was so bizarre that the OLC itself disowned it a few months after it became public.[11] It is unusual for one OLC opinion to disown an earlier one, and it shows just how far out of the mainstream Professor Yoo and Judge Bybee had wandered. The memo’s authors were obviously looking for a standard of torture so high that none of the enhanced interrogation techniques would count. But legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted. I should note that on January 15 of this year, Mr. Bradbury found it necessary to withdraw six additional OLC opinions by Professor Yoo or Judge Bybee.[12]

Mr. Chairman, recent news reports have said that the Justice Department’s internal ethics watchdog, the Office of Professional Responsibility, has completed a five-year investigation of the torture memos. OPR has the power to refer lawyers to their state bar disciplinary authorities, and news reports say they will do so.
I have no personal knowledge about what OPR has found. Presumably, investigators were looking either for evidence of incompetence, evidence that the lawyers knew their memos don’t accurately reflect the law, or evidence that process was short-circuited.

This morning I have called the torture memos a legal train wreck. I believe it’s impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law. But what I or anyone else believes is irrelevant. Ethics violations must be proved, by clear and convincing evidence, not just asserted. That sets a high bar, and it should be a high bar.

In closing, I would like to emphasize to this Committee that when OLC lawyers write opinions, especially secret opinions, the stakes are high. Their advice governs the executive branch, and officials must be told frankly when they are on legal thin ice. They and the American people deserve the highest level of professionalism and independent judgment, and I am sorry to say that they did not get it here.

I know this will not change the opinions of those who think waterboarding is not torture, however, I think this clearly shows that legally what the Bush administration did was a violation of the law.

No torture appologist here, just someone that differs in opinion on what torture is with Luban and cotts135.

subroc

Article [I.]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article [II.]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No torture appologist here, just someone that differs in opinion on what torture is with Luban and cotts135.

Subroc, without question your entitled to your opinion, what I would like to know is what it is based on?

This is for anyone who would like to answer. Recently Mclatchey news and others have reported that waterboarding and other torture techniques may have been used to extract info connecting Iraq with Al-qaeda . If true is there any justification for using these techniques for this clearly political reason? If there is I would certainly like to hear about it.

OK, you posted testimony presented to a Senate Judiciary Subcommittee that contests legal opinions of the previous administration. And that proves what? His opinions support your opinions. Therefore, this is a must read for everyone so we can be enlightened and converted to your point of view? The case cited referred to law enforcement. The Bush administration was dealing with a different class of people with a completely different set of goals.

Personally, I don't care if it is called torture. It is a far cry from what most of us think of when we hear the word torture. There are plenty of people who think the use of an e collar on a dog is torutre. In the hands of the wrong person the most benign object can be used for torture.

I think the bigger question is are we as a nation in agreement that there are people in this world who seek to harm us regardless of what we do. They hate us and will do whatever they can to destroy us. On September 11, 2001 a small group of terrorists proved that they do not need to have a large military to attack us. They proved that if they are willing to sacrifice their lives they can bring this country to its knees and cause great harm to us. They feel they are successful as long as they attempt to harm us. They are counting on their will to harm us being greater than our will to protect ourselves. They are patient. We, as a society, are not patient. They will succeed in the future, sometime, somewhere. We, as a society, need to deciede if we are going to protect ourselves. Just because we bribe people with our aid does not mean they no longer hate us. Just because we want people to like us does not they no longer hate us. Just because we leave our enemies alone does not mean they no longer hate us.

Do I think we should give the CIA free reign to do as they please no. I believe there needs to be oversight and support for the work they do. I don't think every detail needs to be used as political ammunition. We should be able to trust our elected offials to make decisions in the best interest of the country, not for current of future political expediancy.

I'm sure you are not surprised to read that the testimony you posted has not changed my mind or political beliefs.

Interesting article Hew. Did you take note of the date though? Were you aware that the sub heading of the article is that the Democrats will lose the election if they are perceived soft on terror.

I am not suggesting that Democratic candidates seek to emulate Mr. Giuliani. But they cannot ignore his tough stance on national security if they want to succeed in the 2008 election, as distinguished from selected state primaries. Marginal Democratic candidates certainly benefit from moving to the left on national security issues, but serious candidates--candidates who want to have any realistic chance of prevailing in the general election--must not allow themselves to be pushed, shoved or even nudged away from a strong commitment to national security.

His implication to me here is clear. Only a canidate strong on terror will win the election. We all now know how that election went. There are however some things I agree with him on. My contention about this has always been the legality of it. Dershowitz says in his article:

Most Americans--Democrats, Republicans, independents or undecided--want a president who will be strong, as well as smart, on national security, and who will do everything in his or her lawful power to prevent further acts of terrorism.

He further quotes President Clinton in an NPR interview he did:

He said Congress should draw a narrow statute "which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court." The president would have to "take personal responsibility" for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that "one in a million" situation.

I am not in total agreement with this solution. Bush and co would have been better served if this had been existing law, instead , they chose to wear skirts and hide behind some dubious and far fetched legal theorys that have been widely debunked and scorned by the legal community